Except as provided in R.C.M. 405(n), no charge or specification may be referred to a general court-martial for trial until completion of a preliminary hearing in substantial compliance with this rule. The issues for determination at a preliminary hearing are limited to the following: whether each specification alleges an offense; whether there is probable cause to believe that the accused committed the offense or offenses charged; whether the convening authority has court-martial jurisdiction over the accused and over the offense; and the appropriate disposition that should be made of the case. Failure to comply with this rule shall have no effect on the disposition of any charge if the charge is not referred to a general court martial. The preliminary hearing enables the impartial assessment of the case so that the preliminary hearing report can meaningfully inform a disposition determination.

The function of the preliminary hearing is to ascertain and impartially weigh the facts needed for the limited scope and purpose of the preliminary hearing. The preliminary hearing is not intended to perfect a case against the accused and is not intended to serve as a means of discovery or to provide a right of confrontation required at trial. Determinations and recommendations of the preliminary hearing officer are advisory. Failure to substantially comply with the requirements of Article 32, which failure prejudices the accused, may result in delay in disposition of the case or disapproval of the proceedings. See R.C.M. 905(b)(1) and 906(b)(3) concerning motions for appropriate relief relating to the preliminary hearing. The accused may waive the preliminary hearing. See R.C.M. 405(m). In such case, no preliminary hearing need be held. However, the convening authority authorized to direct the preliminary hearing may direct that it be conducted notwithstanding the waiver.

If a preliminary hearing on the subject matter of an offense has been conducted before the accused is charged with an offense, and the accused was present at the preliminary hearing and afforded the rights to counsel, cross-examination, and presentation of evidence required by this rule, no further preliminary hearing is required.

Subject to R.C.M. 405(c)(2), unless prohibited by regulations of the Secretary concerned, a preliminary hearing may be directed under this rule by any court-martial convening authority. That authority may also give procedural instructions not inconsistent with these rules.

For charges and specifications over which a special trial counsel has exercised authority, the special trial counsel shall determine whether a preliminary hearing is required. If a special trial counsel determines that a hearing is required, the special trial counsel shall request that a convening authority provide a preliminary hearing officer. Upon such a request, the convening authority shall provide a preliminary hearing officer and direct a preliminary hearing in accordance with this rule. If a special trial counsel determines a previous preliminary hearing is required to be reopened, the convening authority shall direct the preliminary hearing to be reopened.

As soon as practicable but no later than five days after direction of an Article 32 preliminary hearing, counsel for the Government shall provide the defense with copies of, or, if impracticable, permit the defense to inspect:

the order directing the Article 32 preliminary hearing pursuant to this rule (R.C.M. 405);

statements, within the control of military authorities, of witnesses that counsel for the Government intends to call at the preliminary hearing;

evidence counsel for the Government intends to present at the preliminary hearing; and

any matters provided to the convening authority when deciding to direct the preliminary hearing.

This rule is not intended to limit or discourage counsel for the Government from providing additional materials to the defense.

If items covered by R.C.M. 405(d)(1) are contraband, the disclosure required under this rule is a reasonable opportunity to inspect said contraband prior to the preliminary hearing.

If items covered by R.C.M. 405(d)(1) are privileged, classified, or otherwise protected under Section V of Part III, the Military Rules of Evidence, no disclosure of those items is required under this rule. However, counsel for the Government may disclose privileged, classified, or otherwise protected information covered by R.C.M. 405(d)(1) if authorized by the holder of the privilege, or, in the case of Mil. R. Evid. 505 or 506, if authorized by a competent authority.

If the Government agrees to disclose to the accused information to which the protections afforded by Section V of Part III may apply, the convening authority, or other person designated by regulation of the Secretary concerned, may enter an appropriate protective order, in writing, to guard against the compromise of information disclosed to the accused. The terms of any such protective order may include prohibiting the disclosure of the information except as authorized by the authority issuing the protective order, as well as those terms specified by Mil. R. Evid. 505(g)(2)–(6) or 506(g)(2)–(5).

The purpose of this rule is to provide the accused with the documents used to make the determination to direct a preliminary hearing and to allow the accused to prepare for the preliminary hearing. This rule is not intended to be a tool for discovery and does not impose the same discovery obligations found in R.C.M. 405 prior to amendments required by Section 1702 of the National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 980 (2013), as amended by Section 531 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, 128 Stat. 3371 (2014), or R.C.M. 701. Additional rules for disclosure of witnesses and other evidence in the preliminary hearing are provided in R.C.M. 405(j).

Preliminary hearing officer.

The convening authority directing the preliminary hearing shall detail an impartial judge advocate, not the accuser, who is certified under Article 27(b)(2) to conduct the hearing. The Judge Advocate General of the armed force of which the officer is a member, or, in the case of the Marine Corps, the Staff Judge Advocate to the Commandant of the Marine Corps, shall certify the judge advocate as having the requisite training and experience to serve as the preliminary hearing officer, in accordance with regulations prescribed by the Secretary concerned.

When it is impracticable to appoint a judge advocate certified under Article 27(b)(2) due to exceptional circumstances:

The convening authority may detail an impartial commissioned officer as the preliminary hearing officer, and

An impartial judge advocate certified under Article 27(b)(2) shall be available to provide legal advice to the detailed preliminary hearing officer.

Whenever practicable, the preliminary hearing officer shall be equal or senior in grade to the military counsel detailed to represent the accused and the Government at the preliminary hearing.

The Secretary concerned may prescribe additional limitations on the detailing of preliminary hearing officers.

The preliminary hearing officer, if not a judge advocate, should be an officer in the grade of O-4 or higher. The preliminary hearing officer may seek legal advice concerning the preliminary hearing officer’s responsibilities from an impartial source, but may not obtain such advice from counsel for any party or counsel for a victim. Because this is a preliminary hearing and not a trial, the requirement for the preliminary hearing officer to remain impartial does not preclude the preliminary hearing officer from identifying matters or sources of information that may warrant further inquiry. See R.C.M. 405(k)(1). The responsibility for requesting and producing such information, however, rests with the parties.

The preliminary hearing officer shall not depart from an impartial role and become an advocate for either side. The preliminary hearing officer is disqualified to act later in the same case in any other capacity.

Subject to R.C.M. 405(e)(2)(B), a judge advocate, not the accuser, shall serve as counsel to represent the Government.

For preliminary hearings requested by a special trial counsel, the special trial counsel shall detail counsel for the Government consistent with regulations prescribed by the Secretary concerned. Any determination by a special trial counsel to prefer or refer charges shall not act to disqualify that special trial counsel as an accuser.

Military counsel certified in accordance with Article 27(b) shall be detailed to represent the accused.

The accused may request to be represented by individual military counsel. Such requests shall be acted on in accordance with R.C.M. 506(b).

The accused may be represented by civilian counsel at no expense to the Government. Upon request, the accused is entitled to a reasonable time to obtain civilian counsel and to have such counsel present for the preliminary hearing. However, the preliminary hearing shall not be unduly delayed for this purpose. Representation by civilian counsel shall not limit the rights to military counsel under R.C.M. 405(e)(3)(A) or (B).

The convening authority who directed the preliminary hearing may also detail or request an appropriate authority to detail a reporter, an interpreter, or both.

The preliminary hearing officer shall limit the inquiry to the examination of evidence, including witnesses, relevant to the issues for determination under R.C.M. 405(a).

If evidence adduced during the preliminary hearing indicates that the accused committed any uncharged offense, the preliminary hearing officer may examine evidence and hear witnesses presented by the parties relating to the subject matter of such offense and make the determination specified in R.C.M. 405(a) regarding such offense without the accused first having been charged with the offense. The rights of the accused under R.C.M. 405(g), and, where it would not cause undue delay to the proceedings, the procedure applicable for production of witnesses and other evidence under R.C.M. 405(i), are the same with regard to both charged and uncharged offenses. When considering uncharged offenses identified during the preliminary hearing, the preliminary hearing officers shall inform the accused of the general nature of each offense considered and otherwise afford the accused the same opportunity for representation, cross-examination, and presentation afforded during the preliminary hearing of any charged offense.

If evidence adduced during the preliminary hearing indicates that the accused committed any uncharged covered offense and the preliminary hearing was not requested by special trial counsel, the preliminary hearing officer shall provide prompt notice to the convening authority and a special trial counsel and shall submit a copy of the preliminary hearing report to a special trial counsel.

Except as set forth in R.C.M. 405(j), the Military Rules of Evidence do not apply at a preliminary hearing. Except as prohibited elsewhere in this rule, a preliminary hearing officer may consider evidence, including hearsay, which would not be admissible at trial.

At any preliminary hearing under this rule the accused shall have the right to:

Be advised of the charges and uncharged misconduct under consideration;

Be represented by counsel;

Be informed of the purpose of the preliminary hearing;

Be informed of the right against self-incrimination under Article 31;

In accordance with the terms of R.C.M. 405(k)(4), be present throughout the taking of evidence;

Cross-examine witnesses on matters relevant to the issues for determination under R.C.M. 405(a);

Present matters relevant to the issues for determination under R.C.M. 405(a); and

Make a sworn or unsworn statement relevant to the issues for determination under R.C.M. 405(a).

For the purposes of this rule, a “victim” is an individual who is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the commission of an offense under the UCMJ.

A victim of an offense under the UCMJ or the victim’s counsel, if any, shall receive reasonable, accurate, and timely notice of a preliminary hearing relating to the alleged offense and a reasonable opportunity to confer with counsel for the Government.

A victim has the right not to be excluded from any public proceeding of the preliminary hearing, except to the extent a similarly situated victim would be excluded at trial.

See Article 6b, UCMJ.

Prior to any preliminary hearing under this rule, the parties shall, in accordance with timelines set by the preliminary hearing officer, provide to the preliminary hearing officer and the opposing party the following notices:

Notice of the name and contact information for each witness the party intends to call at the preliminary hearing;

Notice of any other evidence that the party intends to offer at the preliminary hearing; and

Notice of any additional information the party intends to submit under R.C.M. 405(l).

Prior to the preliminary hearing, defense counsel shall provide to counsel for the Government the names of proposed military witnesses whom the accused requests that the Government produce to testify at the preliminary hearing, and the requested form of the testimony, in accordance with the timeline established by the preliminary hearing officer. Counsel for the Government shall respond that either (1) the Government agrees that the witness's testimony is relevant, not cumulative, and necessary to a determination of the issues under R.C.M. 405(a) and will seek to secure the witness's testimony for the hearing; or (2) the Government objects to the proposed defense witness on the grounds that the testimony would be irrelevant, cumulative, or unnecessary to a determination of the issues under R.C.M. 405(a).

If the Government objects to the proposed defense witness, defense counsel may request that the preliminary hearing officer determine whether the witness is relevant, not cumulative, and necessary to a determination of the issues under R.C.M. 405(a). The defense has the burden of establishing that the witness is relevant, not cumulative, and necessary by a preponderance of the evidence.

If the Government does not object to the proposed defense military witness or the preliminary hearing officer determines that the military witness is relevant, not cumulative, and necessary, counsel for the Government shall request that the commanding officer of the proposed military witness make that person available to provide testimony. The commanding officer shall determine whether the individual is available and, if so, whether the witness will testify in person, by video teleconference, by telephone, or by similar means of remote testimony, based on operational necessity or mission requirements. If the commanding officer determines that the military witness is available, counsel for the Government shall make arrangements for that individual's testimony. The commanding officer's determination of unavailability due to operational necessity or mission requirements is final. If the military witness is unavailable as determined by this rule, the preliminary hearing officer may require an affidavit or other sufficiently reliable evidence unless it would unreasonably delay the proceedings or interfere with operational necessity or mission requirements. If the commanding officer determines that the witness is unavailable, the counsel for the Government shall obtain a written explanation from the commanding officer detailing the circumstances and rationale for the determination.

A victim who is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification under consideration and is named in one of the specifications under consideration shall not be required to testify at a preliminary hearing.

A commanding officer’s determination of whether an individual is available, as well as the means by which the individual is available, is a balancing test. The more important the testimony of the witness, the greater the difficulty, expense, delay, or effect on military operations must be to deny production of the witness. Based on operational necessity and mission requirements, the witness’ commanding officer may authorize the witness to testify by video teleconference, telephone, or similar means of remote testimony. Factors to be considered in making this determination include the costs of producing the witness; the timing of the request for production of the witness; the potential delay in the proceeding that may be caused by the production of the witness; and the likelihood of significant interference with operational deployment, mission accomplishment, or essential training. Before determining that a witness is unavailable, the witness’ commanding officer should give due consideration to the alternative forms of testimony noted above, which generally can be facilitated with minimal impact on command operations.

Defense counsel shall provide to counsel for the Government the names of proposed civilian witnesses whom the accused requests that the Government produce to testify at the preliminary hearing, and the requested form of the testimony, in accordance with the timeline established by the preliminary hearing officer. Counsel for the Government shall respond that either (1) the Government agrees that the witness's testimony is relevant, not cumulative, and necessary to a determination of the issues under R.C.M. 405(a) and will seek to secure the witness's testimony for the hearing; or (2) the Government objects to the proposed defense witness on the grounds that the testimony would be irrelevant, cumulative, or unnecessary to a determination of the issues under R.C.M. 405(a).

If the Government objects to the proposed defense witness, defense counsel may request that the preliminary hearing officer determine whether the witness is relevant, not cumulative, and necessary to a determination of the issues under R.C.M. 405(a). The defense has the burden of establishing that the witness is relevant, not cumulative, and necessary by a preponderance of the evidence.

If the Government does not object to the proposed civilian witness or the preliminary hearing officer determines that the civilian witness's testimony is relevant, not cumulative, and necessary, counsel for the Government shall invite the civilian witness to provide testimony and, if the individual agrees, shall make arrangements for the witness's testimony. A civilian witness cannot be compelled to provide testimony. If expense to the Government is to be incurred, the convening authority who directed the preliminary hearing, or the convening authority's delegate, shall determine whether the witness testifies in person, by video teleconference, by telephone, or by similar means of remote testimony.

Factors to be considered in making this determination include the costs of producing the witness; the timing of the request for production of the witness; the potential delay in the proceeding that may be caused by the production of the witness; the willingness of the witness to testify in person; and, for child witnesses, the traumatic effect of providing in person testimony. Civilian witnesses may not be compelled to provide testimony at a preliminary hearing. Civilian witnesses may be paid for travel and associated expenses to testify at a preliminary hearing. See generally Department of Defense Joint Travel Regulations.

Prior to the preliminary hearing, defense counsel shall provide to counsel for the Government a list of evidence under the control of the Government the accused requests the Government produce to the defense for introduction at the preliminary hearing. The preliminary hearing officer may set a deadline by which defense requests must be received. Counsel for the Government shall respond that either (1) the Government agrees that the evidence is relevant, not cumulative, and necessary to a determination of the issues under R.C.M. 405(a) and shall make reasonable efforts to obtain the evidence; or (2) the Government objects to production of the evidence on the grounds that the evidence would be irrelevant, cumulative, or unnecessary to a determination of the issues under R.C.M. 405(a).

If the Government objects to the production of the evidence, defense counsel may request that the preliminary hearing officer determine whether the evidence should be produced. The preliminary hearing officer shall determine whether the evidence is relevant, not cumulative, and necessary to a determination of the issues under R.C.M. 405(a). If the preliminary hearing officer determines that the evidence shall be produced, counsel for the Government shall make reasonable efforts to obtain the evidence. If such evidence is not reasonably available, the Government will include a written explanation documenting the unavailability of the evidence or efforts to obtain such evidence, which shall be included in the preliminary hearing report under R.C.M. 405(m).

The preliminary hearing officer may not order the production of any privileged matters; however, when a party offers evidence that an opposing party claims is privileged, the preliminary hearing officer may rule on whether a privilege applies.

Evidence not under the control of the Government may be obtained through noncompulsory means or by a pre-referral investigative subpoena issued by a military judge under R.C.M. 309 or counsel for the Government in accordance with the process established by R.C.M. 703(g)(3)(C).

Prior to the preliminary hearing, defense counsel shall provide to counsel for the Government a list of evidence not under the control of the Government that the accused requests the Government obtain. The preliminary hearing officer may set a deadline by which defense requests must be received. Counsel for the Government shall respond that either

the Government agrees that the evidence is relevant, not cumulative, and necessary to a determination of the issues under R.C.M. 405(a) and shall issue a pre-referral investigative subpoena for the evidence; or (2) the Government objects to the production of the evidence on the grounds that the evidence would be irrelevant, cumulative, or unnecessary to a determination of the issues under R.C.M. 405(a).

If the Government objects to production of the evidence, defense counsel may request that the preliminary hearing officer determine whether the evidence should be produced. The defense has the burden of establishing that the evidence is relevant, not cumulative, and necessary by a preponderance of the evidence. If the preliminary hearing officer determines that the evidence is relevant, not cumulative, and necessary to a determination of the issues under R.C.M. 405(a) and that the issuance of a pre-referral investigative subpoena would not cause undue delay to the preliminary hearing, the preliminary hearing officer shall direct counsel for the Government to seek a pre-referral investigative subpoena for the defense requested evidence from a military judge in accordance with R.C.M. 309 or authorization from the general court-martial convening authority to issue an investigative subpoena. If counsel for the Government refuses or is unable to obtain an investigative subpoena, the counsel shall set forth the reasons why the investigative subpoena was not obtained in a written statement that shall be included in the preliminary hearing report under R.C.M. 405(m).

A pre-referral investigative subpoena to produce books, papers, documents, data, electronically stored information, or other objects for a preliminary hearing may be issued by counsel for the Government when authorized by the general court-martial convening authority or by a military judge under R.C.M. 309. The preliminary hearing officer has no authority to issue a pre-referral investigative subpoena.

The preliminary hearing officer may not order the production of any privileged matters; however, when a party offers evidence that an opposing party claims is privileged, the preliminary hearing officer may rule on whether a privilege applies.

Only the following Military Rules of Evidence apply to preliminary hearings:

Mil. R. Evid. 301-303 and 305.

Mil. R. Evid. 412(a), except as provided in R.C.M. 405(j)(2).

Mil. R. Evid., Section V, Privileges, except that Mil. R. Evid. 505(f)-(h) and (j); 506(f)-(h), (j), (k), and (m); and 514(d)(6) shall not apply.

In applying the rules to a preliminary hearing in accordance with R.C.M. 405(j)(1)(A), the term “military judge,” as used in such rules, means the preliminary hearing officer, who shall assume the military judge’s authority to exclude evidence from the preliminary hearing, and who shall, in discharging this duty, follow the procedures set forth in such rules. Evidence offered in violation of the procedural requirements of the rules in R.C.M. 405(j)(1)(A) shall be excluded from the preliminary hearing, unless good cause is shown.

In a case of an alleged sexual offense, as defined under Mil. R. Evid. 412(d), evidence offered to prove that any alleged victim engaged in other sexual behavior or evidence offered to prove any alleged victim’s sexual predisposition is not admissible at a preliminary hearing unless—

the evidence would be admissible at trial under Mil. R. Evid. 412(b)(1) or (2); and

the evidence is relevant, not cumulative, and is necessary to a determination of the issues under R.C.M. 405(a).

A party intending to offer evidence under R.C.M. 405(j)(2)(A) shall, no later than five days before the preliminary hearing begins, submit a written motion specifically describing the evidence and stating why the evidence is admissible. The preliminary hearing officer may permit a different filing time, but any motion shall be filed prior to the beginning of the preliminary hearing. The moving party shall serve the motion on the opposing party, who shall have the opportunity to respond in writing. Counsel for the Government shall cause the motion and any written responses to be served on the victim, or victim’s counsel, if any, or, when appropriate, the victim’s guardian or representative. After reviewing the motion and any written responses, the preliminary hearing officer shall either—

deny the motion on the grounds that the evidence does not meet the criteria specified in R.C.M. 405(j)(2)(A)(i) or (ii); or

conduct a hearing to determine the admissibility of the evidence.

If the preliminary hearing officer conducts a hearing to determine the admissibility of the evidence, the admissibility hearing shall be closed and should ordinarily be conducted at the end of the preliminary hearing, after all other evidence offered by the parties has been admitted. At the admissibility hearing, the parties may call witnesses and offer relevant evidence. The victim shall be afforded a reasonable opportunity to attend and be heard, to include being heard through counsel. If the preliminary hearing officer determines that the evidence should be admitted, the victim may directly petition the Court of Criminal Appeals for a writ of mandamus pursuant to Article 6b.

The preliminary hearing may be abated pending action by the Court of Criminal Appeals.

The motions, related papers, and the record of an admissibility hearing shall be sealed and remain under seal in accordance with R.C.M. 1113.

When ordering an exhibit or proceeding sealed in accordance with R.C.M. 1113, the preliminary hearing officer should consider the purpose for which the exhibit or proceeding is to be sealed and determine if the person or entity whose interests are being protected should be permitted access to the sealed materials. The preliminary hearing officer should include language in the sealing order identifying the purpose for which the exhibit or proceeding is being sealed and, if applicable, provide parameters for examination by or disclosure to those persons or entities whose interests are being protected. See R.C.M. 1113(b)(4)-(5) for definitions of the terms “examination” and “disclosure.”

The preliminary hearing shall begin with the preliminary hearing officer informing the accused of the accused's rights under R.C.M. 405(g). Counsel for the Government will then present evidence. Upon the conclusion of counsel for the Government's presentation of evidence, defense counsel may present matters. Both counsel for the Government and defense counsel shall be afforded an opportunity to cross-examine adverse witnesses. The preliminary hearing officer may also question witnesses called by the parties. If the preliminary hearing officer determines that additional evidence is relevant, not cumulative, and necessary for a determination of the issues under R.C.M. 405(a), the counsel for the Government shall produce such evidence in accordance with R.C.M. 405(i) unless it is not reasonably available. In such a case, the Government will provide a written explanation documenting unavailability or efforts to obtain such evidence, which shall be included in the preliminary hearing report under R.C.M. 405(m). Except as provided in R.C.M. 405(m)(2)(J), the preliminary hearing officer shall not consider evidence not presented at the preliminary hearing in making the determination under R.C.M. 405(a). The preliminary hearing officer shall not call witnesses sua sponte.

When the preliminary hearing officer finds that evidence offered by either party is not within the scope of the hearing, the preliminary hearing officer shall inform the parties and halt the presentation of that information.

Witness testimony may be provided in person, by video teleconference, by telephone, or by similar means of remote testimony. All testimony shall be taken under oath, except that the accused may make an unsworn statement. The preliminary hearing officer shall only consider testimony that is relevant to the issues for determination under R.C.M. 405(a).

The following oath may be given to witnesses: “Do you (swear) (affirm) that the evidence you give shall be the truth, the whole truth, and nothing but the truth (so help you God)?” All preliminary hearing officer notes of testimony and recordings of testimony should be preserved until the end of trial. If during the preliminary hearing any witness subject to the UCMJ is suspected of an offense under the UCMJ, the preliminary hearing officer should comply with the warning requirements of Mil. R. Evid. 305(c), (d), and, if necessary, (e). Bearing in mind that counsel are responsible for preparing and presenting their cases, the preliminary hearing officer may ask a witness questions relevant to the issues for determination under subsection (a). When questioning a witness, the preliminary hearing officer may not depart from an impartial role and become an advocate for either side.

If relevant to the issues for determination under R.C.M. 405(a), a preliminary hearing officer may consider other evidence offered by either counsel for the Government or defense counsel, including statements, tangible evidence, or reproductions thereof, that the preliminary hearing officer determines is reliable. Written statements need not be sworn.

Preliminary hearings are public proceedings and should remain open to the public whenever possible, whether conducted in person or via remote means. If there is an overriding interest that outweighs the value of an open preliminary hearing, the convening authority or the preliminary hearing officer may restrict or foreclose access by spectators to all or part of the proceedings. Any restriction or closure must be narrowly tailored to protect the overriding interest involved. Before ordering any restriction or closure, a convening authority or preliminary hearing officer must determine whether any reasonable alternatives to such restriction or closure exist, or if some lesser means can be used to protect the overriding interest in the case. The convening authority or preliminary hearing officer shall make specific findings of fact in writing that support the restriction or closure. The written findings of fact shall be included in the preliminary hearing report.

Convening authorities or preliminary hearing officers must conduct a case-by-case, witness-by-witness, and circumstance-by-circumstance analysis of whether restriction or closure is necessary. Examples of overriding interests include: preventing psychological harm or trauma to a child witness or to an alleged victim of a sexual crime, protecting the safety or privacy of a witness or an alleged victim, protecting classified material, and receiving evidence where a witness is incapable of testifying in an open setting.

The accused shall be present for the preliminary hearing, except as otherwise noted in R.C.M. 405(k)(4)(B).

The convening authority that directed the preliminary hearing may authorize the use of audio-visual technology between the parties and the preliminary hearing officer. In such circumstances, the “presence” requirement of the accused is met only when the accused has a defense counsel physically present at the accused’s location or when the accused consents to presence by remote means with the opportunity for confidential consultation with defense counsel during the proceeding. Such technology may include two or more remote sites as long as all parties can see and hear each other.

The accused shall be considered to have waived the right to be present at the preliminary hearing if the accused:

After being notified of the time and place of the proceeding is voluntarily absent; or

After being warned by the preliminary hearing officer that disruptive conduct will cause removal from the proceeding, persists in conduct which is such as to justify exclusion from the proceeding.

Counsel for the Government shall ensure that the preliminary hearing is recorded by a suitable recording device. A victim named in a specification under consideration may request access to, or a copy of, the recording of the proceedings. Upon request, counsel for the Government shall provide the requested access to, or a copy of, the recording or, at the Government’s discretion, a transcript, to the victim or victim’s counsel, if any, not later than a reasonable time following dismissal of the charges, unless charges are dismissed for the purpose of rereferral, or court-martial adjournment. This rule does not entitle the victim to classified information or sealed materials consistent with an order issued in accordance with R.C.M. 1113(a).

See Article 32(e)-(h), UCMJ.

Video and audio recording, broadcasting, and the taking of photographs—except as required in R.C.M. 405(k)(5)—are prohibited. The convening authority may, as a matter of discretion, permit contemporaneous closed-caption video or audio transmission to permit viewing or hearing by an accused removed under R.C.M. 405(k)(4) or by spectators when the facilities are inadequate to accommodate a reasonable number of spectators.

Any objection alleging a failure to comply with this rule, other than an objection under R.C.M. 405(m), shall be made to the preliminary hearing officer promptly upon discovery of the alleged error. The preliminary hearing officer is not required to rule on any objection. An objection shall be noted in the preliminary hearing report if the person objecting so requests. The preliminary hearing officer may require a party to file any objection in writing.

The preliminary hearing officer has the authority to order exhibits, recordings of proceedings, or other matters sealed as described in R.C.M. 1113.

When ordering an exhibit or proceeding sealed in accordance with R.C.M. 1113, the preliminary hearing officer should consider the purpose for which the exhibit or proceeding is to be sealed and determine if the person or entity whose interests are being protected should be permitted access to the sealed materials. The preliminary hearing officer should include language in the sealing order identifying the purpose for which the exhibit or proceeding is being sealed and, if applicable, provide parameters for examination by or disclosure to those persons or entities whose interests are being protected. See R.C.M. 1113(b)(4)-(5) for definitions of the terms “examination” and “disclosure.”

No later than 24 hours from the closure of the preliminary hearing, counsel for the Government, defense counsel, and any victim named in a specification under consideration (or, if applicable, counsel for such a victim) may submit to the preliminary hearing officer, counsel for the Government, and defense counsel additional information that the submitter deems relevant to the disposition of the charges and specifications.

Defense counsel may submit additional matters that rebut the submissions of counsel for the Government or any victim provided under R.C.M. 405(l)(1). Such matters must be provided to the preliminary hearing officer and to the counsel for the Government within 5 days of the closure of the preliminary hearing.

The Military Rules of Evidence and other regulations may require the preliminary hearing officer to seal certain materials. Preliminary hearing officers have the discretion to seal other supplementary information that they determine should be protected from disclosure. Such information may include personally identifiable information, medical information, financial information, and any other information that may cause unnecessary harm to an individual or entity if released. When ordering an exhibit or proceeding sealed in accordance with R.C.M. 1113, the preliminary hearing officer should consider the purpose for which the exhibit or proceeding is to be sealed and determine if the person or entity whose interests are being protected should be permitted access to the sealed materials. The preliminary hearing officer should include language in the sealing order identifying the purpose for which the exhibit or proceeding is being sealed and, if applicable, provide parameters for examination by or disclosure to those persons or entities whose interests are being protected. See R.C.M. 1113(b)(4)-(5) for definitions of the terms “examination” and “disclosure.”

The preliminary hearing officer shall examine all supplementary information submitted under R.C.M. 405(l) and shall seal, in accordance with R.C.M. 1113, any matters the preliminary hearing officer deems privileged or otherwise not subject to disclosure.

The preliminary hearing officer shall provide a written summary and an analysis of the supplementary information submitted under R.C.M. 405(l) that is not sealed and is relevant to disposition for inclusion in the report to the convening authority or special trial counsel, as applicable, under R.C.M. 405(m).

If the preliminary hearing officer seals any supplementary information submitted under R.C.M. 405(l), the preliminary hearing officer shall provide an analysis of those materials. The analysis of the sealed materials shall be sealed. Additionally, the preliminary hearing officer shall generally describe those matters and detail the basis for sealing them in a separate cover sheet. This cover sheet shall accompany the sealed matters and shall not contain privileged information or be sealed.

The supplementary information and any summary and analysis provided by the preliminary hearing officer, and any sealed matters and cover sheets, as applicable, shall be forwarded to the convening authority or special trial counsel, as applicable, for consideration in making a disposition determination.

Submissions under R.C.M. 405(l) shall be maintained as an attachment to the preliminary hearing report provided under R.C.M. 405(m).

The preliminary hearing officer shall make a timely written report of the preliminary hearing to the convening authority or, for hearings requested by a special trial counsel, to the special trial counsel. This report is advisory and does not bind the staff judge advocate, convening authority, or special trial counsel, as applicable.

As soon as practicable after receipt of supplementary information under R.C.M. 405(l), the charges and the report of preliminary hearing should be forwarded to the court-martial convening authority. See Article 10.

The preliminary hearing report is an impartial analysis of the case that meaningfully informs the referral authority when making an initial disposition determination and shall include:

A statement of names and organizations or addresses of counsel for the Government and defense counsel and, if applicable, a statement of why either counsel was not present at any time during the proceedings;

The recording of the preliminary hearing under R.C.M. 405(k)(5);

For each specification, the preliminary hearing officer's reasoning and conclusions with respect to the issues for determination under R.C.M. 405(a), including a summary of relevant witness testimony and documentary evidence presented at the hearing and any observations concerning the testimony of witnesses and the availability and admissibility of evidence at trial;

If applicable, a statement that an essential witness may not be available for trial;

An explanation of any delays in the preliminary hearing;

A notation if counsel for the Government refused to issue a pre-referral investigative subpoena that was directed by the preliminary hearing officer and the counsel's statement of the reasons for such refusal;

Recommendations for any necessary modifications to the form of the charges and specifications;

A statement of whether the preliminary hearing officer examined evidence or heard witnesses relating to any uncharged offenses in accordance with R.C.M. 405(l)(2), and, for each such offense, the preliminary hearing officer's reasoning and conclusions as to whether there is probable cause to believe that the accused committed the offense and whether the convening authority would have court-martial jurisdiction over the offense if it were charged;

A notation of any objections if required under R.C.M. 405(k)(7);

The recommendation and supporting analysis of the preliminary hearing officer as to the disposition that should be made of the charges and specifications in the interest of justice and discipline. In making this disposition recommendation, the preliminary hearing officer shall consider:

any evidence admitted during the preliminary hearing;

matters submitted under R.C.M. 405(l);

the credibility and weight of the evidence; and

whether there is probably sufficient admissible evidence to obtain and sustain a conviction at trial.

The written summary and analysis required by R.C.M. 405(l)(3)(A); and

A notation as to whether the parties or the preliminary hearing officer considered any offense to be a covered offense.

The preliminary hearing officer may include any additional matters useful to the convening authority or special trial counsel in determining disposition. For guidance concerning disposition of offenses, see Appendix 2.1 (Disposition Guidance). The preliminary hearing officer may recommend that the charges and specifications be amended or that additional charges be preferred. See R.C.M. 306 and 401 concerning other possible dispositions.

If the preliminary hearing report contains exhibits, proceedings, or other matters ordered sealed by the preliminary hearing officer in accordance with R.C.M. 1113, counsel for the Government shall cause such materials to be sealed so as to prevent unauthorized viewing or disclosure.

The preliminary hearing officer shall promptly cause the preliminary hearing report to be delivered to the convening authority or, for hearings requested by a special trial counsel, to the special trial counsel. Counsel for the Government shall promptly cause a copy of the report to be delivered to each accused. The convening authority or, for hearings requested by a special trial counsel, the special trial counsel shall promptly determine what disposition will be made in the interest of justice and discipline in accordance with R.C.M. 401 or R.C.M. 401A.

Upon receipt of the report, the parties shall have five days to submit objections to the preliminary hearing officer. Any objection to the preliminary hearing report shall be made to the convening authority who directed the preliminary hearing, via the preliminary hearing officer. The objection shall be served upon the opposing party, and government counsel must provide notice of the objection to any named victim or named victim’s counsel, if any. The preliminary hearing officer will forward the objections to the convening authority as soon as practicable. The convening authority may direct that the preliminary hearing be reopened or take other action, as appropriate. For cases where a special trial counsel has exercised authority, the special trial counsel may request the convening authority reopen the preliminary hearing. Upon such request, the convening authority shall reopen the preliminary hearing. This paragraph does not prohibit a convening authority or special trial counsel from taking other action prior to the expiration of five days allotted for submitting objections. Failure to make a timely objection under this rule shall constitute waiver of the objection.

The accused may waive a preliminary hearing. However, the preliminary hearing may still be conducted notwithstanding the waiver. Relief from the waiver may be granted by the convening authority, a superior convening authority, or the military judge, as appropriate, for good cause shown. For offenses over which a special trial counsel has exercised authority, a special trial counsel may grant relief from the waiver. If a special trial counsel declines to grant relief from the waiver and the case is referred, the accused may request relief from the military judge.

See also R.C.M. 905(b)(1); 906(b)(3).